Faxers: FCC Rule Delay 'Generous'

Fax marketers reacted with relief to news yesterday that the Federal Communications Commission had granted a 16-month delay of the enactment of new fax solicitation rules and announced it would give the issue further consideration.

The FCC pushed back the Aug. 25 start of new rules governing fax solicitations to Jan. 1, 2005, in response to an outcry from professionals, trade associations and small businesses. Announced in July, the new rules required faxers to get written permission from consumers and businesses before sending solicitations.

Under the old rules, faxers needed only an existing business relationship, but the new rules would remove this exemption. In its order Aug. 18, the FCC said it would allow the existing-business-relationship exemption to continue until the end of the extension period.

However, the FCC rejected a request from the American Teleservices Association to delay enforcement of all the changes it has announced to its telemarketing rules under the Telephone Consumer Protection Act, including the national no-call list. The ATA is challenging the FCC and Federal Trade Commission in federal court to overturn the list.

The ATA will continue to challenge the no-call list in court, said Tim Searcy, ATA executive director. Though the FCC's denial of the ATA request came as no surprise, the agency's decision to delay the fax rules shows that not all of its telemarketing changes were given enough thought, he said.

"It's a rare thing for a regulatory agency to come out and say it made a mistake," Searcy said.

Fax marketers termed the FCC extension "generous" and said that it would give their clients more time to cope with the changes, which some feared would make the fax machine unusable for business transactions.

"'Relieved' is probably the key word," said Mark Priebe, president of Proximity Marketing, Brecksville, OH. "The burden the FCC put on our customers to get written permission in 30 days was unrealistic."

Priebe, whose company was among those that petitioned the FCC for a delay, said many of his clients are in the trade publishing industry and use faxes for subscription renewals. Many were concerned that they lacked the budget to get written permission from their subscribers in time, he said.

Though faxers welcomed the extra time, many said they planned to stay active in the issue. The FCC must be persuaded to abandon the idea of a written-permission requirement for fax solicitations altogether, they said.

"We will be using this time in that effort," said David Straus, postal counsel with American Business Media, another group that petitioned the FCC. "We hope to convince the FCC that the written-signature requirement is not necessary, ever."

ABS Fax Technologies, Houston, a fax software provider, will maintain the LegalFax.org Web site it launched as a portal for people interested in the issue, said Michael Chodrow, secretary/treasurer for ABS. The site also will continue collecting signatures for a petition it plans to send to two congressional subcommittees that deal with telecommunications and to Sen. John McCain, R-AZ, who chairs the Senate Commerce Committee.

LegalFax.org has gotten about 12,000 visitors since it launched in July, Chodrow said, and has collected about 500 signatures for the petition.

The U.S. Chamber of Commerce, which also petitioned the FCC, will continue to press the commission and, if that fails, will approach members of Congress, said Steve Bokat, vice president and general counsel for the Chamber.

Bokat cautioned that even with the extension, fax marketers need to be more careful about to whom they send solicitations after Aug. 25.

The FCC has redefined the term "existing business relationship" to refer specifically to customers who made a purchase in the past 18 months or an inquiry in the past three months. This change, part of an overhaul of the Telephone Consumer Protection Act, takes effect even with the extension, Bokat said. Previously, the term "existing business relationship" was not precisely defined and was more open to interpretation, he said.

In its order granting the delay, the FCC acknowledged that several companies and trade organizations had requested a stay of the new rules. The delay will give faxers the time to obtain written permission from their customers and let the FCC consider the issue further, the agency said.

"We believe that, in light of this new information, the public interest would best be served by allowing [senders] of such advertisements additional time to obtain such express permission before the new rules become effective," the FCC said. "In addition, this extension will allow the commission the opportunity to consider any petitions for reconsideration and other filings that may be made on this issue."